Smith v. Pennsylvania Secretary of State

April 22, 2008

RHETT R. SMITH, PLAINTIFFv.PENNSYLVANIA SECRETARY OF STATE DEFENDANT

The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Plaintiff Rhett R. Smith's complaint (Doc. No. 1) and motion for leave to proceed in forma pauperis (Doc. No. 1, Ex. 1). In his complaint, filed April 22, 2008, Plaintiff alleges that the Pennsylvania Secretary of State, or, more precisely, Secretary of the Commonwealth, "violates plaintiff's First Amendment by 'establishment of religion' [sic] in the upcoming [sic]-April 22, 2008-presidential primary election in that only 'Christian-Zionists' are presented." (Doc. No. 1, at 1). Plaintiff, who bills himself as "a non-Zionist candidate for President of the United States," asks the Court to "recognize" his candidacy. (Id..) For the reasons that follow, the Court will grant Plaintiff's motion for leave to proceed in forma pauperis and dismiss his complaint for failure to state a claim.

A plaintiff seeking leave must file an affidavit of poverty with the court, disclosing every source of income, financial account, and valuable property, as well as the amount of any financial support of dependent persons. The court then conducts a thorough review of the affidavit and, provided it is satisfied that the plaintiff is without sufficient resources to pay the costs and fees of the proceeding, grants leave to proceed in forma pauperis. Id.

In his affidavit, Plaintiff indicates that he is presently employed at an hourly rate of $8.75, which equates to a monthly income of approximately $1,440. (Doc. No. 1, Ex. 1, at 1.) His only assets are an automobile valued at $3,000 and $5,000 in United States currency. (Id.) Plaintiff further attests to debts totaling more than $30,000. (Id.) Based upon these figures, the Court finds that Plaintiff is without sufficient resources to pay the costs and fees of the proceeding. Accordingly, the Court will grant Plaintiff's motion for leave to proceed in forma pauperis.

B. Merits Analysis Under 1915(e)(2)

Having determined that Plaintiff is entitled to proceed in forma pauperis, the court is next required to assess the sufficiency Plaintiff's complaint under 28 U.S.C. § 1915(e)(2) prior to service of process. Section 1915(e)(2) states:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-

(A) the allegation of poverty is untrue; or

(B) the action or appeal-

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may ...

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